The Murderer’s Two Hats

When Western District of Texas Judge Earl Leroy Yeakel III ruled, heads began to explode all over the place.

U.S. District Judge Lee Yeakel dropped manslaughter charges against former Austin Police Department Detective Charles “Trey” Kleinert Thursday afternoon, thus ending any chance that the APD veteran will see any sort of criminal recourse for the death of Larry Jackson, Jr.

He didn’t, of course, “drop” anything, but then, it’s not like journalists work with words, so the Austin Chronicle’s Chase Hoffenberger can be forgiven his inept phrasing. Rather, Yeakel held that the Constitution precluded state prosecution of a federal agent for the performance of his duties:

In a 27-page opinion, Judge Yeakel concluded that the state’s assertion that Kleinert should not be entitled to Supremacy Clause immunity because Kleinert’s interactions were not within his federal-task-force duties is not concurrent with the law, and that “by virtue of Kleinert’s deputation, he was authorized to investigate federal crimes committed in his presence.

“Kleinert had ample cause to believe Jackson was attempting to wrongfully obtain funds from the bank,” he continued. “Jackson’s fleeing the conversation with Kleinert further indicated that Jackson’s purpose at the bank was different from the way he described it [when questioned upon attempted entrance. The court concludes that from the time Kleinert began his conversation with Jackson until the time that Jackson died, Kleinert was acting in his capacity as a federal officer and, as such, is entitled to the defense of Supremacy Clause immunity.” Yeakel added that he did not consider testimony concerning APD policies: “Those procedures are simply not relevant to the immunity defense.”

For the TL;dr, Kleinert, the Austin cop, was assigned to be part of a federal task force when he killed Jackson.  Judge Yeakel held that since he was wearing his federal hat at the time, the state doesn’t get to prosecute him for killing Jackson. Federal law is supreme (hence the name, Supremacy Clause), and states can’t go around passing judgment on the conduct of federal officers. Not even for killing.

Wesley Lowery does a great job of tracking the history of the use of the Supremacy Clause as a free-killing card for cops:

As a federal agent at the time, the judge ruled, Kleinert is shielded from state prosecution.

The ruling stunned Jackson’s family, whose attorney called it a “great civil rights injustice,” and dismayed the local prosecutor, who has vowed to appeal. Meanwhile, the case is shining a spotlight on a legal tactic rarely used in criminal cases, one that raises the question of when, if ever, a federal law enforcement officer can be charged with a crime for killing someone in the line of duty.

The question is not theoretical: So far this year, federal officers have been involved in 33 fatal shootings nationwide, according to a Washington Post database tracking shootings by law enforcement officers — more than any state or local department. More than two-thirds involved the U.S. Marshals Service, the federal agency responsible for corralling fugitives.

Stinks? You bet. But here’s the kicker:

The vast majority also involved local police officers acting in concert with federal officials, the database shows. If the ruling in the Austin case stands, the blanket of federal immunity could extend to hundreds, if not thousands, of state and local police officers who participate in federal task forces set up to handle matters as varied as immigration offenses and sex crimes.

How did this happen?  Time to play a fun game of connect the dots. Local police are subject to jurisdictional limitations. For example, an Austin police officer works his beat in Austin, right?  But to fight the drug war, where scary stories of national and international drug cartels are legion, the idea was born that by creating “task forces” consisting of law enforcement officers from multiple jurisdictions, both local, state and federal, they could go beyond their limited jurisdiction to, well, anywhere they had to go.

So what’s does it take to make such a “task force”?  A few cops, a few agents, get assigned to one, they give it a cool name, there is a piece of paper somewhere cross-designating the people on the task force as agents of one sovereign as well as others, and, boom, there you go. And every cop on the task force is suddenly a federal agent as well. Not like they trained at Quantico type of federal agent, but a paper federal agent.

This has been going on for decades, and it plays out in ways that nobody (outside of the lawyers who practice criminal law) paid much attention.  It solved a bunch of problems that might otherwise have made prosecution more difficult, from the Elkins “Silver Platter” doctrine to keeping courts busy, but not too busy.

The task force could bring its cases to whichever prosecutors office best served its needs. If they engaged in conduct that was flagrantly unconstitutional under state law, no problem. They just walked across the street to the federal courthouse. Problem solved!

Most of the time, the jurisdictional issues had nothing to do with the cop being charged for killing some guy, which is why it failed to get on people’s radar. Rather, it was just a mechanism to prosecute drug dealers (and it was so gloriously effective that the use of multijurisdictional task forces has since spread out to all manner of crime).  Nobody cared about it when it was drug dealers, because everybody hated drug dealers. Same as what happened with civil in rem forfeitures.  And so a body of law developed around the authority of cross-designated cops and agents, and nobody said “boo.”

But now, a cross-designated Austin cop gets a free pass on killing Larry Jackson, and everybody is outraged. They should be. The whole concept of cross-designation is a circumvention of the limits of dual sovereignty, and would enable Kleinert to have it both ways, cashing his Austin Police Department paycheck while basking in the cloak of federal supremacy.

Of course, this does not prevent the United States Department of Justice from prosecuting Kleinert if the state is precluded from doing so.

“The fact is that [Kleinert] was working in a federal capacity and carrying out his federal duties,” Leavitt said. “So as long as he was acting in good faith, which he was, he is immune from state prosecution.”

While the state plans to appeal Judge Yeakel’s ruling, there remains an easier answer that would overcome the problem. Hey feds, you want your task force? Clean up its mess. Prosecute Kleinert and put some flesh in the game.

3 thoughts on “The Murderer’s Two Hats

  1. The Feds

    Hey feds, you want your task force? Clean up its mess. Prosecute Kleinert and put some flesh in the game.


  2. losingtrader

    These task forces are wayyyyy cool. How else would a convenience store robber end up with a 237 -year sentence ?
    As to Judge Yeakel, I actually think it’s pronounced “Yokel.”

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